COMMITTEE FOR FINANCE AND PERSONNEL
OFFICIAL REPORT
(Hansard)
Presumption of Death Bill
17 September 2008
Members present for all or part of the proceedings:
Mr Mitchel McLaughlin (Chairperson)
Mr Simon Hamilton (Deputy Chairperson)
Mr Roy Beggs
Dr Stephen Farry
Mr Fra McCann
Ms Jennifer McCann
Mr Adrian McQuillan
Mr Declan O’Loan
Mr Ian Paisley Jnr
Ms Dawn Purvis
Mr Peter Weir
Witnesses:
Neil Lambe ) Department of Finance and Personnel
Oswyn Paulin )
The Chairperson of the Committee for Finance and Personnel (Mr McLaughlin):
This is the start of the Committee Stage of the Presumption of Death Bill, to which the Committee last week agreed to give priority over the Civil Registration Bill. Also, as agreed last week, a notice drawing attention to the Bill’s Committee Stage and seeking submissions by 15 October will appear in tomorrow’s newspapers. Organisations which responded to the Committee for Finance and Personnel’s consultation on the Bill will be contacted directly by Committee staff.
Does the Committee agree that written responses received may be forwarded to the Department of Finance and Personnel for consideration and response, which is the normal process?
Members indicated assent.
I refer members to the briefing paper from the Department and the secretariat paper, which are among the papers provided. I remind members that this session is being covered by Hansard, so all mobile phones must be switched off.
I welcome Oswyn Paulin, departmental solicitor and head of the Government Legal Service for the Department, and Neil Lambe, principal legal officer with the civil law reform division of the Department. I invite them to make their presentation. In order to give the Committee an opportunity to comment or ask questions, I suggest that they deal with the Bill on a clause-by-clause basis. Is that OK?
Mr Oswyn Paulin (Department of Finance and Personnel):
First, may I say that it is gratifying for the Department that the need for, and the principles enshrined in the Bill, have been universally welcomed by Members? It is also gratifying that the Assembly agreed the Second Stage of the Presumption of Death Bill on Monday. This is the first Bill for which the civil law reform division of DFP has responsibility to have reached Committee stage since the restoration of devolution last year.
Several detailed issues were raised by Members during the debate on Monday, and I hope that today, and during the coming weeks, we can address those issues together. I also hope that the Committee will arrive at consensus on those issues — for example technical issues relating to court procedures and the rules of evidence. We are eager to provide the Committee with as much assistance as possible during this stage of the Bill’s progress through the Assembly.
In the briefing papers provided to the Committee in May and June 2008, the Department highlighted some issues that were raised during the public consultation. Furthermore, we described the changes made to the Bill to accommodate those issues before its introduction: for example, giving greater recognition to close relatives of missing person in the application process, and allowing the High Court to dispense with the need for the placing of advertisements in the local media. However, we noted that there were two outstanding issues — insurance and disclosure — which required further consideration.
With respect to insurance, the Minister indicated on Monday that the Department has reconsidered the provisions relating to insurance and capital sums. We have decided to follow exactly the Presumption of Death ( Scotland) Act 1977 in the treatment of those matters. We consulted the insurance industry on our proposed amendments and they were content. A proposed simpler definition of an insurer for inclusion in clause 16 of the Bill is still with colleagues in the Treasury for comment. However, I expect that issue to be resolved very shortly.
As far as disclosure is concerned, members will recall that the Department first raised the issue in the consultation document. Consultees were invited to express views on whether the Bill should include disclosure provisions, and those who responded favoured such a provision. Disclosure is always a difficult issue, and we have given much thought to how such a provision should be framed. We are continuing to work with colleagues across UK Departments and Departments here to secure the necessary agreements for a new provision in the Bill. That new provision will allow the High Court to order a third party — a person, group or body not involved in the case before the court — to disclose relevant information. However, Government Departments and other agencies that hold sensitive personal data have been understandably cautious about the terms and scope of the High Court power compelling them to disclose otherwise protected information. I will share with the Committee a draft of that provision as soon as agreements have been secured.
This Bill is unusual, because of the number of its provisions that concern reserved matters. The consequence of that is that those provisions — dealing for example with the powers of the court — require the consent of the Secretary of State. As the Minister said in his speech to the Assembly on Monday, that consent has been obtained for the Bill in its present form. It will be the responsibility of officials to ensure that any further changes in the provisions of the Bill dealing with reserved matters also have the consent of the Secretary of State.
Now that the Bill has reached Committee Stage, we are very much in the Committee’s hands and are happy to provide members with any assistance that we can. I understand that the Committee wants us to proceed through —
The Chairperson:
Yes. Will you go through the Bill on a clause-by-clause basis? I will invite the Committee to comment as we proceed.
Mr Paulin:
Clause 1 sets out the alternate grounds on which the High Court can make a declaration that a missing person may be presumed dead.
The missing person must be thought to have died or have not been known to be alive for a period of at least seven years. Under clause 1, any person may make an application to the High Court, although the court must refuse to hear an application if it considers that the applicant — other than an applicant who is the spouse, civil partner or close relative of the missing person — does not have a sufficient interest in the determination of the application.
Subsection (2) sets out the jurisdictional rules that must be met in order for the High Court to be able to hear the application: either the missing person must have been domiciled or habitually resident in Northern Ireland or, where the applicant is a spouse or civil partner of the missing person, the applicant is domiciled or habitually resident in Northern Ireland.
I will move on now to domicile and habitual residence, if the Committee wishes.
Ms Purvis:
May we ask questions now, or should we wait until all the clauses have been covered?
Mr Paulin:
We are still on clause 1.
The Chairperson:
We will wait until clause 1 has been finished with before taking questions.
Mr Paulin:
I will now turn to domicile and habitual residence. There is nothing particularly exceptional about the jurisdictional rules in clause 1, which are based on jurisdictional rules that apply when a person seeks dissolution of a marriage or civil partnership based on the presumed death of the spouse or partner. The Committee can look, for example, at article 49(4) of the Matrimonial Causes (Northern Ireland) Order 1978 .
The term “domicile” has a particular meaning in law: it describes the relationship that a person has with a particular country. Every person has a personal law, which is a law that attaches to each of us individually and which determines our capacity to do things wherever in the world we may be. An individual’s personal law will be determined by the person’s domicile. The term “habitual residence” is another legal term that is used as a determining factor in connecting a person with a particular legal jurisdiction.
Finally, I want to mention close relatives. Because not every missing person will be married or will be in a civil partnership, clause 1(3) provides that the High Court cannot refuse to hear an application for a declaration of presumed death from certain close relatives of a missing person. That is a more liberal approach than originally existed.
I am happy to take any questions on clause 1.
Ms Purvis:
Has the Department considered the Eastern Health and Social Services Board’s point that some of the disappeared may not have been domiciled in Northern Ireland and so may therefore fall outside the legislation?
Mr Neil Lambe (Department of Finance and Personnel):
We met some of the families of the disappeared when the legislation was being drafted and they raised that as a potential issue. One of the disappeared, in particular, was not resident in Northern Ireland at the time of his disappearance. The fact that he was outside the jurisdiction at the time is very unlikely to mean that he was no longer legally domiciled or habitually resident in Northern Ireland. Although it is ultimately for the High Court, on receipt of an application, to make the determination as to whether it has jurisdiction in a particular case, we would be fairly confident that the disappeared would satisfy the domiciled or habitual residence requirements.
Ms Purvis:
Clause 1(2)(b) suggests that only the spouse or civil partner of a missing person needs to be domiciled or habitually resident in Northern Ireland. What is the purpose of that provision?
Mr Lambe:
That jurisdictional rule emerges from the existing jurisdictional rules that must be met if an existing spouse or civil partner seeks dissolution of a marriage or civil partnership in Northern Ireland on the basis of the absence and presumed death of the spouse or civil partner. Thus, it is an existing jurisdictional rule that already applies to comparable High Court proceedings.
Ms Purvis:
Will you give the Committee an example?
Mr Lambe:
Under the Matrimonial Causes (Northern Ireland) Order 1978, were a husband to walk out in untoward circumstances and for no reason, and eight years later his spouse decides that it is most likely that her husband is dead because his family has not heard from him; to obtain a divorce in Northern Ireland, she must satisfy the High Court that she lives here; that her husband has been missing for more than seven years, and that she satisfies either the domicile or a habitual residence test. Establishing either domicile or habitual residence in Northern Ireland justifies the High Court in Northern Ireland, as opposed to the High Court in England and Wales, in having jurisdiction to decide the case.
Mr Paulin:
That also applies in divorce cases. In the ordinary course of events, we are not a forum to which people come to get divorces; they generally have to have a connection with Northern Ireland, which is usually on the basis of domicile or habitual residence.
Ms Purvis:
Given that that provision applies to a spouse or a civil partner — and not everyone is married or has a civil partner — does that same provision apply to a close relative?
Mr Lambe:
No. In the application process under the legislation, spouses and civil partners are given a privileged position over all other possible applicants because, unlike any other possible applicant, they remain in a legal contract with the missing person until the marriage is formally dissolved or the civil partnership ended. Therefore, such a person is not free to marry another person or enter into a civil partnership.
It is true that not every missing person will have been married or have been in a civil partnership. We are not putting close relatives in the same position as spouses or civil partners, but we are distinguishing them from other possible applications; for example, a bank that is owed money by the missing person. The High Court cannot refuse to hear the application on the basis that the close relative does not have an interest in the outcome of the application, but a close relative who is applying will have to satisfy the court that the missing person was domiciled or habitually resident in Northern Ireland.
Ms Purvis:
Is it wise to give a spouse or civil partner privilege? Hypothetically, a woman could have separated from her spouse and be living with another person as a cohabitee for many years, but that spouse will still have privilege under the Bill.
Mr Lambe:
Even if there had been a family breakdown and the separated spouse was living with another person, that separated spouse still remains in a legally-binding relationship with the missing person, and is, in our view, in a different position from a cohabitant no matter how long the cohabitation has lasted. A cohabitant will be able to apply under the legislation, and it is most likely that the High Court will, following clause 1, say that the cohabitant has a sufficient interest in the outcome of the case and, therefore, will hear the case and make whatever determination is appropriate on the affidavit evidence supplied.
Ms Purvis:
On what basis will the court determine that sufficient interest exists?
Mr Lambe:
That is a matter for the court.
The Department’s role is not to advise the High Court on whether particular connecting factors satisfy the sufficient interest threshold — that is the court’s job when it receives an applicant’s evidence affidavit. For example, consider a case in which a missing person’s neighbour, who has no interest in the missing person’s property, will not benefit from his or her estate and is not a relative, just wants clarification. On receipt of an officious bystander’s application, the court would be entitled to rule whether he or she had sufficient interest in the case’s outcome to warrant the desired determination. In such circumstances, if family members had not thought fit to apply, of what interest would it be for someone down the street to go to the High Court? The sufficient interest criterion will allow the court a measure of discretion when deciding which cases it will allow to come to court.
Ms Purvis:
Should there not be guidelines setting out what constitutes sufficient interest?
Mr Paulin:
The courts are used to dealing with a concept such a sufficient interest, and we feel that they would readily be able to sort that out. If the Department starts listing criteria that constitute sufficient interest, where would that end? One tends to think of relatives and people who have been adversely affected by someone’s disappearance as having sufficient interest; however, someone who is owed a substantial sum of money by a disappeared person might not come so readily to mind, and, in order to recover that money, such a person might wish to go through the procedure. If we attempt to work out such parameters in advance, we may not consider every possibility that might arise. I am confident that the courts will use such powers properly.
Mr Paisley Jnr:
Further to Ms Purvis’s point about sufficient interest; as legislators, we should provide the courts and the public with a clear understanding of what the legislation that we make actually means. Although I appreciate the fact that the Department does not wish to draw up a list because it could not be exhaustive, it should be clear about what is meant by a person — a friend, a parent or, as has been said, a debtor — having sufficient interest. It would be useful for the Committee to understand how the courts will interpret that clause. Although now is not the time, perhaps the officials could provide the Committee with some case studies of how the courts might interpret it.
I wish to explore the matter raised in clause 1(1)(b):
“has not been known to be alive for a period of at least 7 years,”
How did the Department arrive at that period of time?
Mr Paulin:
That has been the standard to date in similar provisions. The Department is repealing some provisions, such as the matrimonial causes provision, which enables people to bring a marriage to an end in such circumstances. Seven years comes from the period in the law of evidence that applies to presumption of death.
Five years is sufficient in cases of desertion. If a person leaves their spouse without cause for five years then the marriage can be brought to an end — that is in the situation in which the person is living, or not, as the case may be. A longer period, seven years, is the period used to establish the presumption of death as far as the rules of evidence are concerned. The Department has picked the timescale of seven years because of a common-law rule that is reflected in statutes. That is also reflected in the Scottish Act.
Mr Paisley Jnr:
I was about to ask if that is reflected in other, similar legislation.
Mr Lambe:
We noted in the consultation paper in January 2008 that some states in the United States have some statutory intervention, or procedures, for establishing death, and that they adopt different periods of time — some as low as three years, others four, and others five. I do not know the particular reasons why those state legislatures have adopted those time periods. A number of Canadian jurisdictions use the standard seven-year period. In Scotland the period used is seven years, and in common-law jurisdictions like ours, that have limited statutory intervention in this field at the moment, the courts rely on the rule of evidence that posits the seven-year rule.
In fixing the time limit in this Bill to seven years, we followed the Scottish model, but the seven-year rule is known colloquially among the public. If one were to ask about someone who had been missing for seven years people would say that that person could be presumed dead after that period of time. I would explain that it is not quite so straight forward, but I would know what they are getting at. At least there is an element of familiarity in these very early days of a new piece of legislation and a new statutory jurisdiction.
Mr Paisley Jnr:
It is really a convention, then. Has any thought has been given to how it might affect someone who has to invoke this legislation if they are 65, and they realise that nothing can be done until they are 72? Some people may think that that is too long to wait.
Mr Weir:
The spouse in the back garden?
Mr Paisley Jnr:
I do not think that that is funny.
Mr Paulin:
There are two situations: first, there is the situation in which the person is thought to have died. In such a case, there may be evidence that the person has died; for example, they may have been abducted, such as in the case of the disappeared, or some event may have occurred, and although death cannot be established, there is reasonable belief that the person has died. The seven-year timescale would also apply if there is no other reason to believe that someone has died other than that they have not been heard of.
We have not given a lot of thought to the age of the spouse. In taking that line, it may introduce a form of shifting scale, and that would become quite difficult in legislative terms, and I think that it is quite difficult to justify.
The Chairperson:
There was some limited discussion on Monday, when the Minister was before the Assembly, that the period of seven years may be too long generally although not in specific cases.
Mr Paulin:
There is power within the Bill, as drafted, for the Minister to change the period of time, and I think that that would be subject to an affirmative resolution.
The Chairperson:
The Minister did address the matter in those terms.
Mr Paisley Jnr:
I am also thinking of a spouse of pensionable age, or perhaps a perceived victim who is a child, and another family member having to wait seven years before they can achieve closure. There are issues there that could be looked at on either scale. I know that it would cause a legal headache, and I am sure that you, as a legal draftsman, would think it would very difficult to include such a condition, but I wonder if any thought has been given to those issues.
Mr Paulin:
We can reflect upon that further.
Mr Lambe:
There are two issues. The first is whether seven years, as a default, is too long. During consultation, some people thought that that was too long and others thought that we were right to follow established conventions. It is an issue that is exercising the Council of Europe working party. The preliminary discussions that I had with colleagues in the Law Reform Commission of Ireland revealed that they favoured a five-year period. However, much will depend on what the Council of Europe decides at international level.
The second issue is what might be an appropriate time period in individual cases. If we were to insert into the Bill a provision that sets the default position as seven years but states that the High Court can dispense with that in particular cases, potential applicants might not know where they stand because the rule is not fixed. The situation could depend on what discretion the High Court would be prepared to exercise on the particular day that the application comes before it.
Mr Paisley Jnr:
In such a case, I prefer that we — as legislators — are clear about why we are setting timeframes rather than leaving that to a court to determine. It is not that I distrust a court; I think that we must be clear when we are making the law.
Mr Weir:
I will pick up on the points that Ian and Dawn raised. You said that during the consultation people thought that the seven-year period, or a shorter period, was sufficient. Did anybody suggest that seven years was an insufficient period of time?
Mr Lambe:
No: not to my knowledge.
Mr Weir:
In one regard, the debate is about whether the period should be seven years or five years, although I agree that a fixed timeframe should be included so that people have a degree of certainty.
Dawn made a point about sufficient interest. Does Scottish legislation contain a similar reference? Has case law been built up about what sufficient interest is?
Mr Paulin:
There is very little case law in Scotland.
Mr Lambe:
I have not been able to find any reported cases on the Scottish Act, primarily because cases are only reported that raise issues of the law. In Scotland, declarations of presumed death operate at the Sheriff Court level, and people make applications for a bare declaration of presumed death. No issues of law are involved — it is an application of the principles of the legislation to the facts of the case. People obtain a declaration and nobody is any the wiser for it.
Mr Paulin:
The Scottish legislation states that:
“any person having an interest may raise an action of declarator of the death of that person”.
The person concerned does not even have to have a sufficient interest.
Mr Lambe:
The term “sufficient interest” derives from pre-existing Northern Ireland legislation on High Court declaratory proceedings. If the High Court is petitioned for a declaration of parentage, it has the power and discretion to refuse to hear that application if the applicant does not have sufficient interest in the outcome.
I expect the court to use the sufficient interest threshold primarily as a means of preventing nuisance and vexatious applications to it by officious bystanders, whoever they may be. There could be an application from a family member — perhaps an aunt or an uncle; depending on the family structure of that missing person. I doubt that the High Court would tell such an applicant that they do not have a sufficient interest.
Mr Weir:
It has been made clear that we want people to have a degree of certainty about timeframes, and that we do not want variations from case to case. Also, I appreciate that the High Court should have flexibility in interpreting the sufficient interest test. However, I am concerned that we are abrogating the matter by leaving it to the High Court to determine. I understand the argument that the danger in having a tight definition of sufficient interest means that some categories will be included and unforeseen categories will not. However, people will want to know what category they fall into and whether they will have the opportunity to meet the sufficient interest test from a financial relationship perspective or whatever.
Surely, it would be possible to have a list of what sufficient interest means, along with a catch-all final line. That would give the High Court some flexibility and guide it in the same way as a tightly-controlled definition of close relative. It would provide people with a degree of clarity. There are a lot of good definitions in the system, but we seem to have left the interpretation of sufficient interest entirely to the High Court. If we do not produce a framework, people will be confused about whether they qualify as having sufficient interest.
Mr Paulin:
Would it be helpful if — as one of your colleagues suggested — we produced authorities to show how the court has interpreted sufficient interest? That might allay your concerns.
Mr Weir:
That could also support my suggestion. If there are several of examples of sufficient interest having been interpreted in a particular way, why can those not be put down as a clear legislative qualification for sufficient interest? The legislation could include a final provision that would give the High Court some discretion where an application that does not fall into one of those categories. Such legislation would not be unique. It would at least give the High Court some guidance on what should be counted as sufficient interest, rather than the current apparently blank-cheque process.
Mr Paulin:
We need to consider what we are trying to do. Do we want to restrict the number of people who can apply, or —
Mr Weir:
We want to restrict the number of people who can apply. However, we also want to send a signal to people who do not fall into the category of being a spouse or close relative. People will be left in the dark somewhat if the decision is left to the High Court and no guidance is provided about what constitutes sufficient interest. If people were given examples of what constitutes sufficient interest, it may affect the number of applications. We should do our best to provide some clarity.
Mr Paulin:
The matter is similar to the situation in judicial review of whether someone has locus standi; I am not sure what the corresponding English phrase is. It means that there is sufficient interest in the issue that is being challenged to bring proceedings. Locus standi is almost a dead letter in judicial review now, and almost anyone can bring any proceedings.
Mr Weir:
Consequently, if locus standi in judicial review cases is a dead letter, surely it would be helpful to provide guidance for determining what constitutes sufficient interest. As things stand, does it not place a wide interpretation on the High Court on whether one person or another fulfils the sufficient interest test? It would be helpful to provide the court with guidance on the issue.
Mr Lambe:
We will have to further consider what might be interpreted as sufficient interest, but I will leave the Committee with the thought that any person can make an application under clause 1. The applicant, prior to making the application, does not have to decide whether he or she has an interest, because the legislation does not require them to do so. The sufficient interest threshold comes in after the application has been lodged with the High Court. The High Court can acknowledge the application, but it can refuse to hear the application if it considers that the applicant does not have sufficient interest in the outcome of the case. Therefore, the case will not go to a hearing.
Mr Weir:
With respect, it does not preclude anyone from applying. However, if someone wishes to take a legal case, they would have to consider what threshold they have to reach to have their case heard. The deterrent would be the sufficient interest test. We should be considering something with more clarity, which would allow the High Court to have some flexibility.
The Chairperson:
I have no particular expertise on the issue, but it relates to whether the prescriptive approach is helpful to all concerned, including the applicants, or whether, in the light of experience of case law, development over time would be a wider approach that would allow people to know whether they qualify, to seek advice and then decide to give instructions to a solicitor to pursue the issue.
We have strayed well into clause 2, so we will move on. We may not complete this discussion today, but we will work for as long as possible. I suggest a cut-off point of 12.15 pm may give a focus to people.
Mr Beggs:
In case law, what is the definition of not having sufficient interest?
Mr Paulin:
We will come back to you on that.
Mr Beggs:
There is no need for a debate about it now.
Mention was made about whether someone would be presumed dead after seven years or five years under European law. How does that influence the thinking about whether it should be five years or seven years in the Bill?
Mr Lambe:
It is simply an indicator of whether there is emerging international consensus that the conventional time frame of seven years is too long.
Mr Paulin:
It is the Council of Europe, not the European Union. The Council of Europe is a much larger organisation than the European Union.
Mr Beggs:
Are there any directives on the issue?
Mr Paulin:
No.
Mr O’Loan:
The seven-year issue is significant, but it is not the only test.
I would appreciate it if officials would provide the Committee with evidence that has been gathered internationally to show whether the seven-year test has resulted in any difficulties. In Monday’s debate I referred to anecdotal evidence relating to the 2004 tsunami. On reflection, I am not sure why there were problems, but nevertheless, I have heard that some difficulties were exposed.
Mr Paulin:
The twin towers may be another example.
Mr O’Loan:
Yes, that was another example that I had thought of.
Mr Paulin:
Clause 2 makes further provision in relation to declarations of presumed death. It provides that when the High Court makes a declaration of presumed death it must find either that: the missing person has died at a specified time and date or at the end of a specified period in cases where the evidence leads the court to conclude that the missing person has died; or, where the missing person has not been known to be alive for a period of at least seven years, that the missing person died at the end of the day occurring seven years after the date on which the missing person was last known to be alive. Is that reasonably clear?
The Chairperson:
Yes.
Mr Paulin:
Under clause 12, the Department of Finance and Personnel will have the power to vary the requirement that a person must not have been known to be alive for a period of seven years if, for example, an international consensus is reached that a five-year period is sufficiently long to justify a court making a determination of presumed death. In that instance, the Department would be able to make that change through a statutory rule subject to affirmative resolution, rather than the change having to be made via primary legislation. That is based on the assumption that the Assembly will agree on the seven-year period, rather than changing it to a five-, six- or eight-year period.
Clause 2(4) of the Bill is taken from the Scottish Act. It provides that when other courts or tribunals are asked to find that a person may be considered to be dead, such courts or tribunals should apply the criteria in subsection (1) and fix a date and time of presumed death in relation to the missing person. There may be proceedings in other courts that are quite unrelated to the Act and no proceedings that are under the Act — I cannot immediately think of an example, but if it were to occur we would ask the courts to follow the same procedure.
Mr Beggs:
I do not understand fully how that situation would arise.
Mr Paulin:
An example relating to property would be in the case of a lease for lives, where there is some sort of land arrangement involving a person and the last life is a person whose whereabouts are not known; who is believed to have died, but that belief is not based on any evidence. A lease for lives is a form of abeyance of property in which a lease is given to person X as long as persons A, B and C are alive. It used to be the case that person A was someone such as the Queen — someone totally unconnected with the property, and usually someone who is well known so that their death would be known publicly. However, sometimes it can happen that no one knows whether the person is alive or dead and, in those circumstances, the rules in clause 2(4) would apply and therefore the court, in deciding in such circumstances that a person had died, would have to apply the provision that relates to the time at which they had died as set out in the Act.
Mr Beggs:
Am I right to interpret the subsection to mean that the High Court simply makes a judgment about whether it deems a person to be dead whereas a court or tribunal must deal with any incidental issues?
Mr Lambe:
No, as I understand it, subsection (4) applies where no application is made under the Bill. A close relative is not required to apply for a declaration of presumption of death. However, a situation could arise — at which the Bill may not be specifically directed — where the decision as to whether a person is dead or alive becomes a crucial fact. If it is found that someone is dead a court must determine when that person died.
The Chairperson:
Is there a common test that must be satisfied even if it cuts across a number of different legal processes?
Mr Paulin:
Yes, a common test must used even if the case relates to different legislation or no legislation at all.
Mr Lambe:
Under the common-law rule of evidence, if a person has been missing for seven years they may be presumed to be dead. Over the past 150 years, during the formulation of that rule, never once was it said that the time and date of death must be fixed as part of that judicial pronouncement in civil proceedings.
The intention of subsection (4) is to get other courts, which hear contentious disputes between individuals where the issue of presumption of death arises, to follow the form of the new legislation and to fix the time and date of any deaths that they — as a matter of evidence as opposed to a matter of law — presume to have occurred.
Mr Paulin:
It allows for consistency in approach.
Clause 3 provides for the general effect of a declaration of presumed death under clause 1. In essence, the declaration of presumed death shall be conclusive for all purposes and against all persons. It will have the same effect in law as if the missing person had died and their death is recorded by the Registrar General for Northern Ireland in the usual manner.
A declaration of presumed death will automatically end any marriage or civil partnership to which the missing person was a party. Revocation of a declaration will not revive any marriage or civil partnership that has been ended by this operation. The clause makes it clear that once a declaration is made the marriage or civil partnership is ended for good.
A party to the proceedings will have six weeks from the date of the court’s judgment to lodge an appeal with the Court of Appeal. In other words, if I were to apply for a declaration of presumed death and the court rejected it, I would have six weeks within which to lodge an appeal. Similarly, if I were to apply for a declaration to which someone were opposed they would have the same route of appeal if the decision went against them.
Once court procedures are complete, a family member may provide proof that the missing person has been declared dead by lodging a certified copy of the entry in the register of presumed deaths. Paragraph 6 of schedule 1 explains that a certified copy of an entry in the register of presumed deaths in relation to a person is to be received, without further or other proof, as evidence of a person’s death.
Mr Hamilton:
It is almost stating the obvious to say that if a married person were to be presumed dead under the Bill that their marriage would be over. It has been said that in such cases the marriage or civil partnership would be deemed over forever. I have re-read the clause, and it is not clear that that is the case.
In circumstances where a married person comes back from the dead, so to speak, like the man in the canoe, is the marriage still effectively over?
Mr Paulin:
In other words, can it be revived?
Mr Hamilton:
Obviously, one could go down to City Hall and get remarried. However, what is the legal status of the marriage?
Mr Lambe:
When a marriage is ended in law, which is what clause 3 says occurs; there is no common-law doctrine of which I am aware for the revival of the marriage. In law, the missing person is dead and, therefore, death has ended the marriage. What we are trying to do, as far as possible, is to ensure that the consequences of a declaration of presumed death in law are exactly the same as those of the end of a marriage when a person has died.
In clause 3, we are trying to make it clear that that would be the case if the person were found to be still alive at the time when the declaration was made. How could it be otherwise? To allow for the possibility of the revival of the marriage if the declaration is subsequently revoked would put the surviving spouse in an awkward position — would he or she be free to remarry if the legislation were to allow for the possibility of a future revival of the first marriage? That is why, when we raised the issue, during consultation, on whether the declaration should have the effect of automatically ending a person’s marriage or civil partnership, people said that it should. However, the prime reason for doing that is because certainty is needed for the surviving spouse. Whether he or she is the applicant in any particular case or not, the individual needs to know whether he or she is still lawfully married following the declaration.
Mr Hamilton:
It was almost getting into the realms of soap opera there.
The Chairperson:
I noticed that no one declared an interest. [Laughter.]
Mr Paulin:
Clause 4 deals with the ancillary powers of the High Court, which may be exercised only if it makes a declaration of presumed death. There are three powers. One is to determine the domicile of the missing person — we have already discussed domicile. Determining whether the missing person is domiciled in Northern Ireland or elsewhere is a key issue if the missing person has an estate that requires administration under succession law. Domicile is an important issue in law of succession and the administration of estates. The court also has the power to determine on questions relating to the interest of any person in the missing person’s property. For example, an applicant may wish the High Court to determine that the applicant and the missing person hold property together as tenants in common, rather than as joint tenants.
The other ancillary power is to make such order as it considers reasonable as to any rights to or in property acquired as a result of the making of a declaration of presumed death. Upon the making of a declaration of presumed death, the property of the missing person devolves or passes to others in accordance with the rules of law governing succession and the administration of estates. However, there may be particular circumstances in which the court might consider it appropriate to make an order that relates to a small estate, thus avoiding the need for further proceedings in the High Court, especially when there is no will. For example, the court may decide when making a declaration of presumed death to order that the estate be divided between the surviving siblings of the missing person — his or her brothers and sisters.
Subsection (2) provides that an order under clause 4(1)(b) may direct that the value of any rights to, or in property acquired, as the result of the making of a declaration of presumed death are irrecoverable. For example, the court may order that the value of any painting or car, for example, or the proceeds from the sale of the painting or car, are not recoverable under a property variation order made under clause 6(2). Property variation orders can be made when it is found that a person for whom a declaration of presumed death was made is, in fact, still alive.
I am happy to answer any questions.
Mr Weir:
I want to make sure that there is no drafting gap. I appreciate that we have dealt with the domicile issue and that determining the domicile of a missing person at the time of death could be difficult. The question of domicile also arises in the situation of a spouse or civil partner and whether they are domiciled or habitually resident at the time of application. Should the High Court not have the power to determine domicile? I presume that there could be cases in which there are grey areas around whether the applicant, being a spouse, is domiciled or not. I wonder why that is not included. I would have thought that that could be easily determined. Why is that not one of the issues to be determined by the High Court?
Mr Lambe:
As a jurisdictional rule, on the issue of the domicile of a missing person or an applicant spouse, the court does not need to have power under clause 1 of the Bill to make an order saying that it is satisfied that an applicant is domiciled, and, therefore, has the jurisdiction to hear the case. The resolution of any issues on whether the jurisdictional rules are satisfied will be dealt with during the course of the application. There is no need for the High Court to make an order saying that the applicant satisfies the jurisdictional rules of the case. The difference, when we come to clause 4, and the ancillary power of the court to make a determination about the domicile of the missing person, is where the consequences of making that determination will not be for the proceedings before the High Court at that time, but will have effect, perhaps, in subsequent succession or administration proceedings.
Mr Weir:
There is an essential difference between process and outcome.
Mr Lambe:
Yes. In order for any case to come before the judge in the High Court, there will have been a determination, however implicit, in allowing the case to get that far, and that the jurisdictional rules that have been set out have been met.
Mr Weir:
OK.
The Chairperson:
Are there any other questions?
Mr Beggs:
I have a question about the sequence of the clauses of the Bill. Clause 4 gives the High Court the power to determine the domicile of a missing person and deals with issues such as interests in property. Why are those powers not specified in a preceding clause? If a person were not domiciled, would the judgement not be made that it was not for that particular court to deal with? Should that determination not be made at an earlier stage? Where property is concerned, are such decisions not made on the basis that the person concerned may have made a will, rather than determining whether or not it is related to an interest that a person may have in a case?
Mr Lambe:
The ancillary powers will only be exercisable if the High Court has made a declaration that the missing person is presumed dead. That is why, in the structure of the Bill, those powers come after the court makes its pronouncement that, having been satisfied that the jurisdictional rules have been met and satisfied by the evidence presented by the applicant, it is right to proceed; and, if all of those conditions have been met, whether other orders are required to be made. That is when the court would consider those issues.
The Chairperson:
Clause 4(1)(b) deals with the powers of the High Court to make orders about property rights as a result of a direction. What distinction will there be between the exercise of that power and the existing law governing succession to the estates of deceased persons?
Mr Paulin:
My understanding is that it will follow the existing succession law, so that if a person dies intestate without a will, the normal laws of intestate succession will apply. Similarly, if there is a will, it will be administered by the court in exceptional circumstances.
Where the estate is substantial, it will be normal, even though there has been a declaration of presumed death, for the person to apply in the normal way for probate.
The Chairperson:
Where there is a will…
Mr Hamilton:
…there is a way. [Laughter.]
Mr Paulin:
Similarly with intestacy — if there is a substantial estate.
Mr Lambe:
The provision is there, primarily, to allow the High Court to deal with the substance of what is before it, in declaring someone to be presumed dead, and also allow the judge to deal with other minor miscellaneous matters that might arise. The alternative is to have the High Court say that it cannot deal with such matters under this legislation, obliging the plaintiff to commence a separate set of proceedings in the High Court. We hope that one judge would be able to resolve minor issues, obviating the need for further proceedings.
The Chairperson:
During the consultation, the Northern Bank was particularly concerned that the Bill does not give the High Court the option to grant ancillary orders to those who may have an interest in the estate or assets of persons declared dead.
Mr Lambe:
I am not sure what the Northern Bank had in mind by way of its reference to ancillary orders. I thought that it was querying whether, as the Northern Bank, it would have the right to apply and use this jurisdiction if a large sum of money was owed to it. As a corporate person, it is able to apply to have a debtor presumed dead, provided the court does not then exercise its discretion and declare that it did not have a sufficient interest in the outcome. It probably would decide that a creditor did have sufficient interest.
On the other hand, if the Northern Bank understood the phrase “not being able to avail of further ancillary orders under this legislation” to mean that it would be unable to get an order for possession of property, that is so. It would have to initiate — in our view, quite properly — a separate set of proceedings, which it will only be able to do because it has previously established the presumed death of the missing person.
This Bill is not a one-stop shop for the resolution of all possible legal issues that might arise in connection with the affairs of a missing person. Other legal avenues exist for resolving those disputes. One of the aims of the Bill is to leave in place and not disturb the existing procedures and working practices.
The Chairperson:
Therefore, the Bill does not set aside any existing legal mechanisms or recourse for creditors.
Mr Lambe:
Exactly. The legal routes to acquire possession of a property will still be available to creditors.
The Chairperson:
It does not fall to the High Court, under this Bill, to make any determinations in respect of disputes or creditors’ claims.
Mr Lambe:
That is correct. Existing debt-recovery processes are unaffected. However, if, to obtain an order to initiate any debt recovery process, the Northern Bank, or any financial institution, has to establish the death of the missing person, such a financial institution can apply, in the same way as a family member, under this proposed legislation.
The Chairperson:
Might it be possible for you to deal with clauses 5 and 6 together?
Mr Paulin:
Yes. Clause 5 provides the High Court with the power, on application, both to vary and revoke a declaration of presumed death made under clause 1. Whereas any person may apply for a variation order, subsection (2) provides that the court must refuse to hear the application if it considers that the applicant does not have a sufficient interest — we hear that phrase again — in the determination of the application. There are no special rules for spouses, civil partners or close relatives in determining who can apply for a variation order, or how the court should deal with these applications. Given that a declaration of presumed death has already been made in respect of the missing person, there is no need for rules that privilege one type of applicant over another.
All applicants will have to satisfy the court that they have sufficient interest in the application for a variation order.
Clause 5(4) is not required to deal with the court’s powers in clause 4(1)(b) to make orders in relation to the missing person’s property etc, because the limited property varying powers of the court are dealt with separately in clause 6.
Clause 6 sets out the general rule that a variation order under clause 5 is to have no effect on property rights acquired as a result of the making of a declaration under clause 1.
Although, clause 6(2) allows the High Court to make a further order in relation to any rights to or in any property acquired as a result of the making of a declaration of presumed death, clause 6(5) makes clear that, other than in exceptional circumstances, no order under clause 6(2) can be made unless the application for a variation order was made within five years of the making of the declaration of presumed death.
Clause 6(3) further limits the scope of any order that may be made under clause 6(2) by providing that no such order shall cause income generated during the period from the making of the declaration to the making of the variation order to be returned to the missing person, or otherwise redistributed to a person who is entitled to it in consequence of the variation order.
Clause 6(4) sets out the considerations that the High Court must take into account in deciding whether to make an order under clause 6(2).
Clause 6(6) provides protection to a bona fide purchaser for value of any property acquired from a person who is entitled to it on foot of the declaration under clause 6(1).
Clause 6(7) deals with the trustee’s liability for a breach of trust and makes it clear that the trustee is under the same duty of care in relation to the property of the missing person as if he of she were administering the estate of the person who had died and in respect of whom a grant of probate or administration had been obtained.
Under clause 12, the Department of Finance and Personnel (DFP) has the power to amend clause 6 to vary the five-year period, or the seven-year period. In the future, an international consensus may develop that five years is too long a period of uncertainty for those who may have acquired an interest in property as a result of the making of the declaration of presumed death. In that case, DFP will be able to substitute a shorter period of, for example three years, by order. That would be subject to an affirmative resolution of the Assembly.
Mr Hamilton:
My question sounds fairly simple. Clause 5(1) states:
“A declaration under section 1 may … be varied or revoked by an Order”.
Will officials cite a practical example of where a declaration would be amended in any way other than its being revoked?
Mr Paulin:
That could happen when evidence, which was previously not known to the Department, arises that a person died on a particular date. The subsequent discovery that a person died on a particular date could have consequences for property, tax and so forth. Is that a good example?
Mr Lambe:
Yes. Over the past 100 years, the common-law presumption of death was applied in some case law. By adopting one date of presumed death, one set of relatives would inherit under the person’s will whereas, had a different date of death been fixed, a different set of relatives would have inherited. That would result in their going back and forth to the courts in the search for evidence in, for example, late nineteenth century Ohio, to ascertain when the person was last known to be alive. Therefore, the date of presumed death is significant, and in clause 2, for example, the Department stresses that a person could not simply presume a person to be dead — it must be known from what point in time that presumption dates.
Mr Hamilton:
Does that apply when there is a greater certitude of death?
Mr Lambe:
Yes, it applies when further evidence comes to light.
Mr Paulin:
That one example readily springs to mind but there may well be others.
Mr O’Loan:
I have a question as a lay person. Clause 5(1) states that an application for a variation order can be made at any time. I expect that a person who has been presumed dead my turn up 50 years later. Clause 3(a) states:
“no appeal is brought against a declaration under section1 within the time allowed for appeal”.
I cannot see another reference to the time allowed for appeal.
Mr Paulin:
Clause 3(a) refers to the appeal against the declaration of presumed death. So, if I were to apply for declaration of presumed death and succeed, and someone else who was interested in the case had fought it by saying that the person had not died but was still alive and had not been heard from, they could argue that the court was wrong and they could appeal. That would happen at the declaration stage.
The variation stage is different. It is a new, fresh application and asks for presumably new evidence to be brought on which the application could be based.
Mr Lambe:
The reference in clause 3(a) to the time limit in which to appeal essentially makes the point that the effect of the declaration would not occur until the window during which an appeal on a decision from the High Court may be lodged to the Court of Appeal. Although the High Court may decide today that “X” may be presumed to be dead, that judgement would not take effect until six weeks later. That is because six weeks is the timeframe in which an appeal against that decision could be lodged.
Mr O’Loan:
Where is that timeframe specified? Is that a general thing and how quickly —
Mr Lambe:
The six-week period is the general period in which orders of the High Court can be appealed to the Court of Appeal as set out in the rules of court.
Mr O’Loan:
Can the applicant appeal? You talked about a third party appealing.
Mr Paulin:
Yes, the applicant can appeal. They would only need to appeal —
Mr O’Loan:
Is that obvious? It does not seem to say that anywhere.
Mr Paulin:
They would only need to appeal if they —
Mr O’Loan:
Yes, if it had gone against the way that they had wanted.
Mr Paulin:
Yes. Either party can appeal.
Mr Lambe:
It does not need to be said. You are given the right of appeal. It does not need to be specified.
The Chairperson:
There is a right of appeal?
Mr Paulin:
Yes, there is a general right of appeal.
The Chairperson:
OK. I suggest that is sufficient for today. The decision of the Committee in relation to the progress that has been made is whether members want to continue this by correspondence, or whether we should invite you back to complete this particular session.
Mr Beggs:
I have a question regarding this particular clause.
The Chairperson:
Sorry. Excuse me.
Mr Beggs:
In relation to clause 6(5), I do not understand why there is a five-year limit and yet the bill states:
“The High Court must not, except where it considers that there are exceptional circumstances”.
Exceptional circumstances would mean that there is no time limit. Therefore, why is there a time limit, but yet there is no time limit?
Mr Lambe:
The purpose of the five-year limit, given that it is not always going to be binding on the High Court, is quite directional toward the High Court. It states that you should work on the presumption that you do not make an order more than five years after the initial order. However, if you are satisfied that exceptional circumstances exist, you may depart from the five-year principle.
The way that it is raised means that “the High Court cannot do this unless” rather than “the High Court can if it wants to”. It is a difference in emphasis perhaps, but we would not expect the High Court to say lightly that there were exceptional circumstances and that, therefore, they could disregard the clear intention of the legislation, which is that a five-year rule applies.
Members will recall that the discretion regarding exceptional circumstance was not in the draft Bill that we published for consultation, but a number of respondents suggested that it was too rigid and did not give the High Court any flexibility in that regard. Therefore, we agreed to give a limited measure of flexibility — our interpretation as to whether it is limited or not might differ.
Mr Beggs:
I assume that exceptional circumstances would be, for instance, when there is a body, and a date could be established. However, obviously that would apply —
Mr Paulin:
Or a person returns.
Mr Beggs:
Obviously. Those would be exceptional circumstances, so why then do you require a time limit? What would constitute non-exceptional circumstances that could be allowed to be applied in a five-year period?
Mr Paulin:
The person returning is the exceptional circumstance. More definite information on when the person died may not be an exceptional circumstance, but that may depend on the consequences of that if it makes a major difference to people. For instance, if it is known that someone died on 3 January 1972, but that makes no difference, then that would not be exceptional circumstances. However, if it known that someone died on a specific day, which means that X gets an estate of £1 million instead of Y, then that might be an exceptional circumstance.
Mr Beggs:
I understand the terminology about exceptional circumstances, but not why there is a five-year limit. What is happening in the five-year limit that is not governed by exceptional circumstances?
Mr Lambe:
Clause 6 is not an easy clause to understand. There are three elements to it with regard to whether a missing person who was mistakenly presumed to be dead can get their property back.
Clause 6(1) sets out the basic rule: it does not matter if you come back within two years — you do not get your property back. The basic rule is that a variation order, whether it is varying the time or a revocation order, has no effect on the initial distribution of that person’s property which was made on foot of the declaration of presumed death. The assumption should, therefore, be that property is not returned.
If the court is minded to return the property, it can do so only if the application for a variation order is made within a five-year time span. Even then, it is still governed by the basic rule that one should not be making an order returning the property to the individual. If, however, someone comes back seven years later, the two earlier presumptions should apply: no return at all on foot of a revocation order; and you are also outside the five-year window of opportunity for the return of property, which the legislation states. However, we are recognising that, in an individual case, there might be exceptional circumstances in which it would be harsh and unfair to apply those two presumptions. The court therefore has exceptional discretion — it is an accumulative set of barriers.
Mr Paulin:
Almost like a shifting back and forwards.
Mr Lambe:
I am afraid that it is not straightforward.
The Chairperson:
Does the Committee wish to continue this discussion at another sitting?
Mr O’Loan:
There are two other issues about which I want to talk.
The Chairperson:
Today?
Mr O’Loan:
No, but they do need to be discussed. One is the issue of disclosure. Mr Paulin earlier referred consideration being given to inserting a clause to allow the court to order disclosure. There needs to be a much stronger clause. There is a duty on any person who has awareness of the proceedings and who has any relevant information to bring that to the court.
The Chairperson:
May I suggest that the Committee slots that brief section in next week?
Mr O’Loan:
The other issue that might be useful to consider is the statement in the explanatory and financial memorandum that the legislation is deemed to be compatible with the Human Rights Act 1998. What discussion has there been, or is proposed, with the Northern Ireland Human Rights Commission on that matter, including the issue of disclosure?
The Chairperson:
OK. If other issues occur to members, we can flag them up and a note will be sent to give Members the opportunity to reflect on them.
I thank the witnesses for their submission and Hansard for its work this morning.